Category Archives: Workers’ Compensation

Health Care Testing: A New Frontier for Worker’s Comp

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Today’s post comes from guest author Thomas Domer, from The Domer Law Firm in Milwaukee. Although the firm has featured a related blog post before, I think it is worthwhile to re-examine this subject. As has been mentioned below, there are a number of potential issues that could arise from such tests. In addition to the monetary fine for those who did not participate in the screenings, the workplace can seem less welcoming, regardless of whether person’s challenge is physically obvious. Take high cholesterol that has a genetic basis, for example. If a worker gets a fairly regular physical (annual or otherwise) through the preventative side of their health insurance benefits, that employee is probably already being treated for this issue and also probably doesn’t need the added bother of a company or contract nurse calling to espouse the benefits of decreasing that number, as these are concerns between workers and their doctors. Because for this particular issue, it is very possible that genes can trump what is considered the “healthier lifestyle” referred to below, even if that person appears to be more physically fit than other co-workers. In addition, it might be argued that genetic predisposition could be blamed when an occupational exposure is the cause, as Mr. Domer alludes to below. So even with money or benefits on the line, though losing $4,000 is definitely significant, it might be worthwhile for an employee to reconsider whether participating in a company’s wellness testing is really worth it in the long run.

As a worker’s compensation lawyer, I see many news stories through the prism of how the news event or trend will affect injured workers in the worker’s compensation system. A federal judge in Minnesota has ruled that Honeywell, Inc. can begin penalizing workers who refuse to take medical or biometric tests. 

The EEOC had claimed Honeywell’s policy violated the Americans With Disabilities Act and the Genetic Information Nondiscrimination Act. They filed a lawsuit in Minneapolis on behalf of two Minnesota employees of Honeywell.

The tests Honeywell required their employees to take measured blood pressure, cholesterol, and glucose, as well as signs that employee had been smoking. Employees who declined to take the test could be fined up to $4,000 in surcharges and increased health costs. Honeywell said the program is designed to “encourage employees to live healthier lifestyles and to lower health care costs.” Honeywell says the testing promotes employee well-being. Management also indicated “We don’t believe it’s fair to the employees who do work to lead healthier lifestyles to subsidize the healthcare premiums for those who do not.”

The ramifications of such testing for worker’s compensation immediately come to mind. In any kind of an occupational exposure claim, such tests could be used to help deny worker’s compensation claims for employees who smoke, are overweight, have diabetic condition, claims involving occupational back conditions, carpal tunnel claims, and any kind of respiratory complaints. Another “slippery slope” may be the use of these kinds of testing to actually screen prospective employees, since the employer rationale would be that hiring folks with those pre-existing conditions would cost the employer more money.

Roger Moore Chairs Nebraska State Bar Association Work Comp Section Seminar

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Attorney Roger Moore

Firm partner Roger Moore recently completed his term as the chairman for the Nebraska State Bar Association (NSBA) Workers’ Compensation Section for 2014 with the conclusion of the Annual Workers’ Compensation Seminar on Nov. 14.

“My responsibilities were to develop topics, secure speakers and serve as master of ceremonies for the seminar by communicating with a variety of individuals over the course of numerous months,” Moore said. Roughly 100 people attended this year’s seminar, including firm associates Brody Ockander and Brianne Rohner Erickson

Moore completed his final year of serving a four-year rotation of leadership positions within the Workers’ Compensation Section, which started when he was nominated for and elected to the treasurer position three years ago. Moore was the third member of the firm to serve as chairman of the NSBA Workers’ Compensation Section. Partner Todd Bennett and I are past chairmen as well. Moore has participated as a member of the WC Section for the last 14 years, and is admitted to practice law in both Nebraska and Iowa.

There are currently more than 30 sections in the NSBA, according to its website. Each section is made up of a group of attorneys who share similar interests and voluntarily join that section. Attorneys can belong to more than one section.

The Workers’ Compensation Section is consistently one of the largest sections of the association. The section’s goals, according to Moore, are similar to the NSBA’s mission, which can be found here. Some of the priorities that Moore highlights include “to foster and maintain integrity, professionalism, civility and high standards of conduct by NSBA members,” and to help “provide quality support and services for NSBA members.”

Moore’s service is yet another example of the efforts our attorneys and staff have made to be leaders in the legal community, both as participants and leaders in shaping the legal conversations that affect our clients.

State Laws Determine Worker’s Rights: Work Comp Benefits, Process Vary by State

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Many workers are hired in one state but are required to attend orientation or participate in a hiring process in another state because their potential employer is principally located and doing business there. Once they are hired and accept the job, they are then required to work in another state for various reasons. In these situations, many workers do not realize that a different state’s laws could apply to their workers’ compensation claim if they are injured in a state that is

  1. different from where they were hired,
  2. different than where they accepted the job,
  3. different from where their employer is principally located or performing work, or
  4. even different than where they currently live. 

If you have been injured in another state, you may be eligible to have your workers’ compensation benefits determined by another state’s laws. This is important, as the benefits you could be entitled to are different in every state. In certain respects, the differences are significant in terms of the amount of weekly benefits, permanent benefits, or type and duration of medical care you may be able to receive.

The right to choose your family physician to treat you for your injury or the amount and duration of the disability benefits you may be entitled to are significantly different in every state. Let’s consider a few pairs of cities:

  • Omaha, Nebraska & Council Bluffs, Iowa
  • Sioux City, Nebraska & Sioux City, Iowa
  • Nebraska City, Nebrsaka & Harlan, Iowa

These cities in different in Iowa and Nebraska border each other, and a great number of residents from one are employed and work in the other. If you are injured in one state but live in another, and depending on where you were hired or where you were when you accepted the employment, you may have a Nebraska or Iowa workers’ compensation claim, or even both. 

Nebraska

If your employment or your accident has any ties to the state of Nebraska, your employer is required to file a First Report of Injury with the Nebraska Workers’ Compensation Court. When this occurs, it is common for the Nebraska Workers’ Compensation Court to actually mail you a copy of your own First Report of Injury that was filed with the court by your employer. Just because a First Report of Injury was filed in Nebraska and just because the Nebraska Workers’ Compensation Court sends you a copy does not mean you are limited to Nebraska for the benefits that you may be entitled to. 

Iowa

It is also normal for an insurance carrier of the employer to mail you a letter that says, “Your employment agreement, whether in writing or made in person, required your accident to fall under Iowa law,” or some other state’s law. Generally, no one has the right to decide for you which state your case can be determined in. It is a question of each state’s laws that determine where your claim can be processed.

Nebraska and Iowa

As a matter of general practice, if your accident occurred in that state, your claim and benefits can be determined based on that state’s laws. Other things like where your employer is principally located or where your employer regularly performs work can determine if you have a claim in each state. Further, your contract of hire or where you accepted the employment can also play a part, as well as where you were residing at the time of your accident in relation to where your employer was performing work, can also determine which state you may have a claim in. 

These things, as well as what type of benefits each state allow, could make it possible for you to file in both states.

Time Periods to File in Each State

Each state has a certain time period in which to file a claim or action in the compensation court. 

  • In Nebraska, you have two years from the date of accident OR two years from the date of any payment (weekly disability check, medical bill, mileage, prescription) in which to file an action in the compensation court. 
  • In Iowa, a person has two years from the date of accident OR three years from the date of payment of a weekly disability benefit check in which to file an action in the compensation court.  

Beware, however, that payment under one state’s laws may not save your claim in another state. For example, a payment under Iowa law will count toward a payment in Nebraska. However, a payment under Nebraska law will not count toward a payment under Iowa law.

Award, Order or Settlement Agreement for Benefits

It is important to note as well that an award, order or settlement can affect your right to file a claim in another state. 

For example, if one obtains a Court Award, Order or Settlement in Nebraska, this would prevent you from obtaining any benefits in Iowa, if you had the option of pursuing benefits in both states. 

On the other hand, if the same person obtained a Court Award, Order or Settlement in Iowa, a person could still pursue additional benefits in Nebraska that are different than what was provided in Iowa.

In both states, the insurance carrier would be entitled to a credit for what they paid in the other state, but you would still have the opportunity to pursue different and additional benefits in the other states, potentially.    

Summary

The differences in law issues are often very complex. Whatever your situation is, if you think there might be any question as to which state’s laws apply to your case, you should speak to an experienced attorney who can advise you about the laws in each applicable state.

Here’s Rehm, Bennett & Moore’s Slate for the Nov. 4 Nebraska Election

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We support Chuck Hassebrook for Governor of Nebraska

We support Chuck Hassebrook for Governor of Nebraska

Election Day is only 7 days away. Elections are very important for our clients and their families. Voting for good candidates helps protect your rights to receive proper compensation for injuries, lost earnings and damages.

We are supporting the following Nebraska candidates because we believe they will be supportive of preserving, defending, and improving our civil justice system, workers’ compensation law, and the judiciary.

Chuck Hassebrook for Governor

Legislative Candidates supported by NATA (Nebraska Association of Trial Attorneys) PAC:

Election Day is November 4th. Please vote. Your vote is important. We recognize a lot of issues are involved in the decision of whom to support. We believe that this list of candidates will support laws and judges that will protect our clients and their families’ right to full and fair justice.

If you need assistance getting to the polls or don’t know your district, feel free to contact Rod Rehm or Jon Rehm.

Does Workers’ Compensation Cover Ebola?

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The recent news of Ebola in the United States has given me pause to think whether the nurses in Texas who contracted the Ebola virus are covered under the workers’ compensation system.

Here in Nebraska, the nurses with Ebola would almost certainly be covered. In Nebraska, occupational diseases are covered as long as the illness or injury was peculiar to the particular trade or employment. Generally, regular diseases that the general public is exposed to are not covered occupational diseases. For example, influenza, colds, or even MRSA (a type of antibiotic-resistant infection) would probably not be covered for a healthcare worker. Those diseases could be contracted in limitless places or circumstances. However unlike those diseases, I would think that Ebola coming from one single, easily identifiable source would be covered and would easily be proven to have come from the job of being that patient’s nurse.

Let’s just hope we never get to a point where Ebola becomes widespread enough that it would not be a covered occupational disease. If it does, we will have more problems than the compensability of a workers’ compensation claim. 

Examining Workers’ Compensation’s ‘Grand Bargain’ and the Upcoming Election

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Here’s why people should support candidates who will protect workers’ rights. Understand that the ongoing workers’ compensation issues faced by state legislatures are not going away, so state legislatures are the front lines when it comes to making sure workers’ compensation systems are not diluted even more for injured workers and their loved ones.

Here’s some background. Over 100 years ago, workers’ compensation law was developed across the United States. Nebraska was actually one of the pioneering states, back when we were more progressive.  Workers’ compensation was viewed as the “Grand Bargain,” with several presumptions on how the system should work. A January 2014 LexisNexis Legal News Room Workers Compensation Law blog post addresses these presumptions. The blog itself is a respected neutral source on workers’ compensation issues.

While employers and insurance companies are chipping away at the protection workers’ compensation systems offer to injured workers and their loved ones through stalling tactics such as disputing if an injury happened at work or just straight out refusing coverage, those same interests are bending the ears of each state’s politicians to further erode the “Grand Bargain.”

Year in and year out, business and insurance groups cause a large number of bills to be filed that take away benefits from workers or make it more difficult for workers to obtain benefits or take control of their treatment for work injuries.

A recent study’s results, written in the same blog by the same author, reinforces what many injured workers, their loved ones, and their attorneys already know: essentially that workers in New Mexico (and I would argue that this is easily applicable to injured workers in many states) are no longer benefitting from the “Grand Bargain.”

The Grand Bargain Is Out of Equilibrium

“An important part of the ‘grand bargain’ between employers and employees within the workers’ compensation arena is the idea that just as the wear and tear on an employer’s machinery ought to be reflected in the price of the employer’s goods or services, so also should the wear and tear on the employer’s work force. A product’s price should reflect the total cost of production, including the costs associated with work-related injuries and illnesses. The Seabury study adds weight to the argument that the grand bargain is out of equilibrium, that workers’ compensation benefits do not adequately replace what a worker loses through his or her injury, that the physical and economic costs associated with work-related injuries and illnesses are not being fully addressed, and that the injured worker is at least partially subsidizing the overall cost of America’s goods and services with his or her lost income.”

The bottom line from this respected author is that workers’ compensation benefits should not be reduced, made more difficult to obtain, etc., when workers who get injured already make less money over a 10-year period of time than workers who aren’t injured.

So let’s elect legislators who will both restore and support the “Grand Bargain” for injured workers and their loved ones.

Study: Work Comp Benefits Up; Employer Costs at Historic Low

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Respected colleague Thomas Domer of the Domer Law Firm in Milwaukee, recently wrote a post about a study released by the National Academy of Social Insurance (NASI).

The study, titled Workers’ Compensation: Benefits, Coverage, and Costs, 2012, is a treasure trove of information, as you can see if you click on the 86-page document. The 2012 report was just released this summer, I am guessing because it takes a bit to compile all this data.

Here’s what Mr. Domer said about the study (reprinted with permission):

“A new study released by the National Academy of Social Insurance (NASI) indicates worker’s compensation benefits rose by 1.3% to $61.9 billion in 2012 while employer costs rose by 6.9% to $83.2 billion. Even though total benefits and costs increased in 2012, worker’s compensation benefits and costs per $100 of covered payroll have been lower from 2007 to 2012 than at any time over the last 30 years. In 2012 benefits were 98 cents per $100 of covered payroll while employer costs were $1.32 per $100 of covered payroll. 

Over the last 30 years medical benefits have accounted for an increasing share of total benefits from 33% in 1984 to nearly 50% in 2012. Medical benefits accounted for almost 50% of the $61 billion in total benefits paid. In Wisconsin medical benefits exceed cash benefits, indicating that medical cost containment is a significant issue.

The Academy’s report Worker’s Compensation: Benefits Coverage and Costs 2012 is the 17th in an annual survey. The report provides the nation’s only comprehensive data on worker’s compensation benefits coverage and employer costs.”

Rehm, Bennett & Moore includes attorneys licensed in both Iowa and Nebraska, so I was most interested in these two states. As Mr. Domer indicated, cash wage replacement benefits and medical benefits are almost even nationwide, although cash benefits used to be a much greater cost to employers than medical benefits were. There is some difference in benefits between states, too, according to the study.

“The share of benefits paid for medical care varies tremendously across states. The variation not only reflects between-state differences in amounts paid for medical care, but also differences in the relative generosity of cash benefits across states,” according to the study.

Both Iowa and Nebraska are the same as what Mr. Domer reported with Wisconsin above: medical benefits very much outpaced cash benefits, and medical cost containment is definitely a concern. In 2012 in Iowa, over $362 million was paid in medical benefits, while almost $280 million was paid in cash benefits. In 2012 in Nebraska, over $192 million was paid in medical benefits, while over $120 million was paid in cash benefits.

There is a lot more information to digest in this document, so perhaps future blog posts will address some of the details. But I will end on an encouraging note from the 2012 study: “Workers’ compensation covered an estimated 127.9 million workers, (90 percent of the employed workforce) an increase of 1.6 percent from the number of workers covered in 2011 (125.8 million). … Between 2010 and 2012, all states experienced an increase in both covered wages and covered workers.”

That is definitely good news for workers, whether injured or not, and their loved ones.

Are You Really an Independent Contractor?

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“Calling a dog’s tail a leg does not make it a leg.” Abraham Lincoln

FedEx drivers recently won two class-action lawsuits in the 9th Circuit Court of Appeals. The court ruled that FedEx wrongfully withheld overtime pay, Social Security, unemployment, Medicare and other benefits to drivers because they were misclassified as independent contractors rather than employees. The decisions were driven by the fact that FedEx exercised control over the appearance of drivers as well as what packages to deliver, on what days, and at what times.

Though the FedEx decision only applies to Oregon and California, it is very possible that a similar decision would have been made under Nebraska law. Under the Nebraska Wage Payment and Collection Act as well as under the Employment Security Law, Neb. Rev. Stat. 48-601 et al., there is a five-part test as to whether a worker is an independent contractor or employee.

  1. Individual is free from control or direction under contract of hire
  2. Individual is free from control or direction as a matter of fact
  3. Service is outside the usual course of business for which service is performed
  4. Such service is performed outside of all the places of business of the enterprise which such service is performed
  5. Individual is customarily engaged in an independently established trade, business or profession.

Nebraska law creates a presumption of an employer-employee relationship. Tracy v. Tracy, 581 N.W. 2d 96, 7 Neb. App. 143 (Neb. Court of Appeals, 1998) In short, if you can answer most of those questions “no,” you are very likely an employee rather than an independent contractor. The mere fact that you may have signed a documents stating you are independent contractor does not necessarily mean you are an independent contractor.

In addition to protections under federal law, asking questions about your employment status is also a protected activity under Nebraska law. Being misclassified as an independent contractor could cost you thousands of dollars in wages and benefits. However, you have the ability to fight back if you are being misclassified.